Warrantless Search of Cellphone Left in Public Place Constitutional even if You Plan to Come Back for Phone

The Pennsylvania Superior Court has affirmed the Delaware County trial court’s denial of Vincent Kane’s Motion to Suppress evidence obtained from his cell phone without a warrant. The decision will have a trickle down effect on other cases where evidence is obtained without a warrant.

The decision in Commonwealth v. Kane stems from an incident in 2016, when a Villanova University student turned over a cellphone to Villanova University police which she found behind a wet floor sign in her dormitory bathroom. The Villanova police gave the cellphone to the Delaware County police who, in speaking with the District Attorney’s Office, declined to obtain a search warrant for the phone, deeming it “abandoned.” The phone contained various videos and identified Mr. Kane as the owner of the phone.

After speaking with Mr. Kane and obtaining his written consent, police searched Mr. Kane’s home computer and discovered an external hard drive had recently been connected. With this information, police obtained a search warrant for the external hard drive.

The trial court denied Mr. Kane’s Motion to Suppress the evidence from the cell phone, concluding the cellphone was abandoned so no reasonable expectation of privacy existed. The court also denied Mr. Kane’s Motion to Suppress the evidence from the external hard drive, finding the warrant valid.

Mr. Kane was found guilty by the court of four counts Invasion of Privacy, three counts Possessing Child Pornography, and two counts of Criminal Use of a Communications Facility, after waiving his right to a jury trial in exchange for the Commonwealth proceeding on only these charges, and sentenced to 20-60 months incarceration followed by 8 years of probation. Mr. Kane appealed the trial court’s denial of his Motion to Suppress.

Mr. Kane argued he did not abandon the cell phone as he intended to return and obtain the videos on it. The Superior Court ruled Mr. Kane relinquished any expectation of privacy in the cellphone when he voluntarily abandoned it in a public bathroom. The court noted the key factor here was Mr. Kane’s abandonment of the cell phone as distinguishing it from other cases. Additionally, the fact that Mr. Kane intended to return did not negate the intentionality of Mr. Kane’s placement in a public bathroom, open and accessible to others.

Mr. Kane also contended the search warrant was overbroad as it authorized a search of the “entire external hard drive without any limitations on the dates of the files requested, even though the application lists the date of the violation.” The Superior Court agreed with the trial court’s determination that, “read in a common sense manner, the search authorized is specific and supported by probable cause to believe that files containing child pornography would be found on the external hard drive.”

The Superior Court’s ruling expands the scope of warrantless searches to include property the person intends to come back for but has intentionally placed in a public place. This means, you may not think you are abandoning your property as you intend to return, but in the eyes of the court you have abandoned it with no expectation of privacy.

If you think your case may be affected by this ruling, contact us today.